I had the privilege of attending the 5th Annual ASU Arkfeld eDiscovery and Digital Evidence Conference. Michael Arkfeld, Robert Singleton, Joy Allen Woller, and the planning committee did an excellent job organizing an excellent event. The conference topics covered everything from big data analysis to the new Amendments to the Federal Rules of Civil Procedure.
Michael asked me to moderate a panel on admissibility of electronically stored information with Judge Xavier Rodriguez, Sean Gallagher, Esq., and Michelle Hess, a paralegal highly skilled with Trial Director. We had a great time developing a very creative presentation where we presented video clips from science fiction movies to analyze different admissibility issues for electronically stored information.
Here were our video examples:
Authentication: “Help Me, Obi-Wan Kenobi,” Princess Leia
Exercise: Proper Authenticate the holographic message under FRE 901
ESI Connection: What ESI is similar to a hologram? Similar to authenticating an audio recording?
Probative Value/Undue Prejudice: Captain Kirk’s personal log in Star Trek VI
(Between 2:30 to 3:00)
Exercise: Motion in Limine to exclude Captain Kirk’s personal log under FRE 403 as unduly prejudicial.
ESI Connection: Motion in Limine to exclude secret recordings on digital audio recorders or smartphones.
Hearsay: “I am sorry Dave, but I can’t do that”
Exercise: Exclude Hal 9000’s statements to Dave as hearsay in products liability case brought by Commander Bowman’s family against HAL Laboratories.
ESI Connection: Printouts from red light cameras NOT hearsay because a machine cannot make a statement.
Original Writing: Blade Runner: Enhance Image Analysis
Exercise: Is the zoomed in image a duplicate of the original? Can the zoomed in image be admissible? Does it require expert testimony?
ESI Connection: “Copies” of ESI are duplicates.
Sean Gallagher prepared excellent arguments on the different admissibility factors for each. Judge Rodriguez weighed in with impressive analysis, thoughtful questions on what he would want to know, and is a geek in his own right. Michelle worked extremely hard putting together the different clips in Trial Director. Her hard work really connected with the audience as we explored the different admissibility issues.
Tom O’Connor is a good friend who also attended the conference. We sat down to record the below podcast. Check out our thoughts on the new Amendments to the Federal Rules of Civil Procedure, early discovery, and Rule 26(f) conferences.